Opinion
DOCKET NO. A-5747-13T2
03-14-2016
ZAFER LATEF, Plaintiff-Appellant, v. LOUIS J. CICENIA, Defendant-Respondent.
Thomas W. Sweet argued the cause for appellant. Marco A. Laracca argued the cause for respondent (Bio & Laracca, P.C., attorneys; (Mr. Laracca, on the Brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4776-12. Thomas W. Sweet argued the cause for appellant. Marco A. Laracca argued the cause for respondent (Bio & Laracca, P.C., attorneys; (Mr. Laracca, on the Brief). PER CURIAM
Plaintiff appeals from an order that granted defendant's motion for a directed verdict and dismissed plaintiff's claims with prejudice. For the reasons that follow, we affirm.
I.
In June 2010, plaintiff purchased a condominium, Unit 2, located in a twelve-unit building in Hoboken from defendant. Prior to the closing, plaintiff obtained a title search that showed the property was clear of any encumbrances, liens or judgments.
Defendant purchased Unit 2 in 1998 with a line of credit, and recorded the deed later that year. Defendant also owned Units 3 and 5 in the building, which were subject to mortgages from Wells Fargo Bank that were paid off at closing when those units were sold, approximately in 2009.
The record does not specify what bank provided the line of credit.
In October 2007, defendant obtained a $250,000 loan from Wells Fargo Bank, N.A. (Wells Fargo) pursuant to a Prime Equity Line of Credit Agreement in which he used Unit 2 as collateral. Defendant signed a mortgage note to secure the loan, and the note was recorded in December 2007. However, the mortgage described the encumbered property as "607 1RST ST HOBOKEN NJ 07030" and did not specify Unit 2. The attached "Schedule A" also described the pertinent property as "607 1RST ST." without identifying the unit number.
The loan was originally obtained from Wachovia Bank, N.A., which was later acquired by Wells Fargo.
By 2010, defendant had drawn down the entire credit amount available under the line of credit. Defendant testified he used the funds to pay for mortgages on other properties. Defendant stated he had about "[h]alf a dozen" open lines of credit with Wells Fargo for his other properties at that time. To manage the multiple credit lines, defendant maintained a main line of credit and made one monthly lump-sum payment.
Defendant has been a real estate agent and broker for over twenty years. Since 2010, defendant has closed on approximately one hundred properties in the Hoboken area.
In March 2010, plaintiff entered into a contract of sale with defendant to purchase Unit 2 for $213,500. After executing the contract, plaintiff obtained a $160,000 mortgage from MetLife Home Loans. In April 2010, First Jersey Title Services (First Jersey) conducted a title search for judgments and liens, and reported the search was clear. First American Title Insurance Company (FATICO) issued a title policy stating the property was clear of any encumbrances, liens and/or judgments.
The parties proceeded to closing on June 21, 2010. Both plaintiff and defendant were present with counsel. At the closing, defendant signed a Deed and an Affidavit of Title, which provided that the Property was free of any liens or encumbrances. Defendant did not disclose the existence of the mortgage at any time. Plaintiff, his attorney and defendant's counsel all testified they had no knowledge of the mortgage prior to or during the closing. Defendant received a check in the amount of $200,957.09 as the closing proceeds. He cashed the check and recorded the deed later that year.
After defendant sold Unit 2 to plaintiff, he continued to make payments to Wells Fargo for approximately two years. Defendant maintained he did not "believe" there was a mortgage on the Property, however, he stated: "I continued to pay on it -- there was always a question, but I continued to pay on it." No explanation or evidence has been provided as to why defendant believed the mortgage was no longer on Unit 2.
In March 2012, Wells Fargo sent defendant a notice of default based on the fact he had sold the property subject to the loan and an acceleration demand. Wells Fargo refused to accept payments thereafter and notified plaintiff that a foreclosure proceeding was intended for the property as a result.
In June 2012, plaintiff filed a complaint against defendant, alleging conversion, fraud and breach of covenant of title. However, plaintiff did not bring a quiet title action.
In his complaint, plaintiff contended defendant should have used the proceeds from the sale "to pay off or to at least pay down the Wells Fargo mortgage," which he claimed "was in the amount of $249,013.96 at the time of closing." Plaintiff sought to recover from defendant the amount "necessary to pay off the Wells Fargo mortgage."
No evidence has been provided to corroborate this alleged amount owed on the mortgage.
Defendant filed an answer and third-party complaint against FATICO and First Jersey that he later amended to include claims against Wells Fargo, seeking to set aside the mortgage. Wells Fargo filed a counterclaim against defendant. The matters between defendant and FATICO, First Jersey and Wells Fargo were all settled.
The claim was made against both Wells Fargo Bank, N.A. and Wells Fargo Home Equity Group. For ease of reference, we merely refer to Wells Fargo.
After the close of all evidence, defendant moved for a directed verdict. The trial judge observed there were several issues
that no rational juror could really dispute. . . . One, that Mr. Latef purchased the property from Mr. Cicenia. The purchase price is clear; that Mr. Cicenia owned the unit and had title to sell. There's also no dispute of fact that no indebtedness of Mr. Cicenia showed up in this title search. The Plaintiff has called an indebtedness to Wells Fargo a mortgage, the Defendant prefers the reference to it as an equity line of credit purported to be secured against a certain address.
The only plaintiff I have before me today is the subsequent purchaser [who] seeks a judgment on the indebtedness that is alleged to exist between Mr. Cicenia and Wells Fargo. There's been no foreclosure action instituted. There's been no testimony from Wells Fargo as to how much is or isn't owed; how much was paid; how much wasn't paid and why they haven't filed a foreclosure, if in fact one would be appropriate.
. . . .
Second issue is ... I think everybody does agree [plaintiff is] a purchaser for value who took, without knowledge, of any claim.
The judge also questioned, but did not decide, whether plaintiff had standing to assert his claim against defendant.
In granting defendant's motion, the trial judge repeatedly noted that this was not a quiet title action. She stated, "If this was a quiet title action, the Court would be required to decide, was the mortgage valid as against a subsequent purchaser?" The judge observed that the action was, instead, one in which plaintiff seeks a money judgment against defendant for an amount of money owed to Wells Fargo. The judge cited the problem of plaintiff proceeding with his claim without having joined Wells Fargo, potentially binding them to determinations of the amount owed and to whom it was owed. The judge concluded that the complaint should be dismissed because there was "no basis for a rational juror to calculate the amount of damages even if they were allowable." In the absence of such proof, the judge stated it was unnecessary to consider "the more difficult question of how it is Mr. Latef seeks to collect money that's owed to Wells Fargo." The judge also found there was no evidence of intent to support a claim of fraud against defendant.
II.
In his appeal, plaintiff argues: (1) defendant "committed fraud and converted funds owned by the [a]ppellant when he signed and presented a false affidavit of title to the [a]ppellant at the closing," (2) defendant "breached the covenants of title in the contract of sale and deed," (3) defendant "admitted that he owed Wells Fargo at least $200,957.09, that he signed the Wachovia (Wells Fargo) mortgage and that said mortgage was recorded," (4) plaintiff "possesses standing to sue the [r]espondent for conversion, fraud and breach of contract," and (5) "the [t]rial [c]ourt erred in refusing to enter judgment for the [a]ppellant and in entering judgment for the [r]espondent." After reviewing these arguments in light of the record and applicable legal principles, we are unpersuaded that the dismissal of plaintiff's claims should be disturbed.
The standard for deciding a motion for involuntary dismissal under Rule 4:37-2(b) applies to a motion for judgment at trial. R. 4:40-1. A motion for judgment shall be granted if, after presenting its proofs, plaintiff "has shown no right to relief." R. 4:37-2(b); see R. 4:40-1. The motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see R. 4:40-1. We apply the same standard of review as the trial court in considering a motion for judgment pursuant to Rule 4:40-1. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). However, since "appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion," Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001), our analysis of the dispositive issues may differ from that of the trial court.
The thrust of plaintiff's claim here was that he was placed in jeopardy of losing the property he purchased from defendant as a result of defendant's failure to pay a debt owed to another. However, as the trial judge repeatedly observed, he did not bring a quiet title action. Instead, he brought this action to recover money damages that presumably would satisfy the debt owed to Wells Fargo and remove his interest from jeopardy. Plaintiff represents that if he received a judgment in his favor, he would use the money awarded to pay Wells Fargo. Thus, plaintiff essentially attempted to assert Wells Fargo's potential claim against defendant as a third-party.
As of the time this action was tried, no foreclosure action had been initiated. We were advised at oral argument that a foreclosure action has been commenced. --------
His attempt to do so must fail for several reasons. First, it is clear that Wells Fargo was an indispensable party to litigation that determined the validity of its claim against defendant. A party is "truly indispensable [if] he has an interest inevitably involved in the subject matter before the court and a judgment cannot justly be made between the litigants without either adjudging or necessarily affecting the absentee's interest." Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 394 N.J. Super. 71, 82 (App. Div. 2007) (citation omitted), aff'd, 195 N.J. 231 (2008). Since plaintiff sought relief that would potentially extinguish any claim by Wells Fargo on the mortgage, Rule 4:28-1 required joinder of Wells Fargo in this action. In the absence of joinder, the potential also existed that a judgment would not be binding on Wells Fargo, see N. Haledon Fire Co. No. 1 v. Borough of N. Haledon, 425 N.J. Super. 615, 628 (App. Div. 2012), exposing defendant to additional liability for the same debt.
Without Wells Fargo in the case, the "threshold justiciability determination" is whether plaintiff has standing, i.e, a sufficient interest in the matter so as to allow him "to initiate and maintain an action." Spinnaker Condo. Corp. v. Zoning Bd. of Sea Isle City, 357 N.J. Super. 105, 110 (App. Div.), certif. denied, 176 N.J. 280 (2003); R. 4:26-1 (discussing "real party in interest"). Standing requires a plaintiff to have: (1) "a sufficient stake in the outcome of the litigation"; (2) "a real adverseness with respect to the subject matter"; and (3) "a substantial likelihood . . . [of] suffer[ing] harm in the event of an unfavorable decision." In re Camden Cnty., 170 N.J. 439, 449 (2002) (citation omitted).
Even applying our courts' "traditionally . . . generous view of standing," In re N.J. State Contract A71188, 422 N.J. Super. 275, 289 (App. Div. 2011), plaintiff cannot meet this test in his effort to seek the amount due to Wells Fargo. We need not address the first two requirements for standing because plaintiff did not demonstrate a substantial likelihood he will suffer harm in the event the Wells Fargo mortgage was found to constitute a valid lien on the unit he purchased.
The evidence at trial failed to show a lien existed on the unit purchased by defendant by virtue of a valid and properly recorded mortgage. The actual security instrument executing the Mortgage merely describes the encumbered property as the address of the building; it does not specify that it pertains to Unit 2.
Because the mortgage did not specify that it encumbered Unit 2, plaintiff is not left unprotected against action to deprive him of his interest in Unit 2. Under the New Jersey Recording Act, unrecorded instruments are void "against subsequent bona fide purchasers and mortgagees for valuable consideration without notice and whose conveyance or mortgage is recorded." N.J.S.A. 46:26A-12(b)-(c). Accordingly, the statute protects a later purchaser who: (1) acquired the interest "for valuable consideration"; (2) did not have notice of the prior unrecorded instrument; and (3) recorded their deed prior to the instrument upon which the asserted adverse claim is based.
It is undisputed that plaintiff provided "valuable consideration" to acquire his interest in the property and that he did not have notice of the Wells Fargo mortgage. Assuming that plaintiff recorded his deed before Wells Fargo filed any mortgage that specifically identified the lien on Unit 2, he would qualify as a bona fide purchaser whose position would be protected against a claim by Wells Fargo against the property. The evidence therefore fails to show a substantial likelihood he will suffer harm.
In addition, plaintiff's claim was not ripe at the time this suit was initiated and tried. A claim is not ripe for adjudication if it rests upon "contingent future events that may not occur as anticipated, or indeed may not occur at all." Tex. v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 1259, 140 L. Ed. 2d 406, 410-11 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S. Ct. 3325, 3333, 87 L. Ed. 2d 409, 419-20 (1985)). When plaintiff brought this action, no foreclosure action had been commenced. Pursuant to N.J.S.A. 2A:50-2, "all proceedings to collect any debt secured by a mortgage on real property" must first begin with "a foreclosure of the mortgage." Moreover, "[n]o action shall be instituted against any person answerable on the bond or note unless he has been made a party in the action to foreclose the mortgage." N.J.S.A. 2A:50-2. Therefore, the claim asserted by plaintiff was not ripe for adjudication.
Plaintiff attempts to avert the consequences of his failed effort to secure the money defendant owed to Wells Fargo by maintaining he did have standing to pursue claims of fraud, conversion and breach of covenant of title. These claims are all contingent upon the existence of a valid mortgage that created a lien against the property he purchased, which was not proven. However, plaintiff's claims fail even if such a mortgage were proven.
Conversion is "the exercise of any act of dominion in denial of another's title to the chattels or inconsistent with such title." Lembaga Enters., Inc. v. Cace Trucking & Warehouse, Inc., 320 N.J. Super. 501, 507 (App. Div. 1999) (quoting Mueller v. Tech. Devices Corp., 8 N.J. 201, 207 (1951)). The elements of conversion are: (1) "the property and right to immediate possession thereof belong to the plaintiff" and (2) "the wrongful act of interference with that right by the defendant." First Nat'l Bank v. N. Jersey Trust Co., 18 N.J. Misc. 449, 452 (Sup. Ct. 1940). Plaintiff argues that defendant's receipt of the closing proceeds constitutes conversion because the funds should have been given to Wells Fargo to pay for the mortgage. The property in question — the money plaintiff paid for his condominium unit — is clearly not property that belongs to him and as to which he had the right to immediate possession. Therefore, this claim fails.
Plaintiff also argues defendant committed fraud by failing to disclose the Wells Fargo mortgage when he sold the property to him. Fraud is comprised of five elements: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Plainly, defendant's representation that there were no liens or encumbrances on the property was a material misrepresentation of fact. However, defendant maintained he did not believe a lien remained on Unit 2 at any time before, during or after the closing in 2010. The trial judge accepted this testimony and found that defendant did not make the misrepresentation intentionally. This finding, based in part on a credibility assessment, is entitled to our deference. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). In the absence of evidence that defendant knew his representation was false and intended plaintiff to rely upon that misrepresentation, plaintiff's claim of fraud fails.
Plaintiff also argues there was sufficient evidence to support his claim that defendant breached the covenants of title contained in the contract of sale and deed, which ensured marketable title free of encumbrances.
The contract of sale contained assurances regarding the "Quality of Title," which provided: "Title to the Property shall be good, marketable and insurable." This covenant was incorporated into the assurances provided in the deed, which included the following covenant:
4. Promises by Grantor. The Grantor promises that the Grantor has done no act to encumber the Property. This promise is called a "covenant as to grantor's acts" (N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed anyone else to obtain any legal rights which affect the Property (such as by making a mortgage or allowing a judgment to be entered against the Grantor).
Here, the mortgage, as executed, pertained to the building "607 1RST ST"; it did not refer to "Unit 2," the actual property conveyed. The deficiency in the description of the property to be encumbered permitted plaintiff to obtain insurable title and effectively defeats plaintiff's claim that there was an encumbrance upon Unit 2 constituting a breach of defendant's promises.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION